Court Unseals Files on Apple Asteroid Probe

A California appeals court has cleared the way for the Electronic Frontier Foundation to post documents on its Web site that it claims show that Apple Computer failed to pursue investigative alternatives to legally forcing Web reporters to reveal their so

A California appeals court has agreed with the Electronic Frontier Foundations request to unseal documents relating to Apple Computer Inc.s legal campaign to force reporters for three Web sites to reveal their sources for articles that disclosed details about Apples "Asteroid" audio product.

A redacted version of the documents, which the California 6th District Court of Appeals ordered unsealed last week, is available on the EFF Web page that covers the history of the case: OGrady et al v. Superior Court, also known as "Apple v. Does."

Three sites—PowerPage.org, ThinkSecret.com and AppleInsider.com—posted articles outlining details about an Apple product code-named Asteroid, which is a FireWire-based audio interface unit that will work with GarageBand, Apples music composition application.

The EFF said that the documents show that Apple did not exhaust other avenues of investigation, as required by law, before seeking subpoenas against the three sites, which published information about the product before it was released. The EFF is one of the organizations providing legal representation for AppleInsider.com and PowerPage.org.

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"We wanted the public to see this," said Kurt Opsahl, a staff attorney for the EFF, "instead of hearing Apple say that they did a thorough investigation.

"One of the key issues in this case is protecting the rights of journalists" under the First Amendment, Opsahl said. He stressed that sending subpoenas to journalists and forcing them to reveal their sources should be a "last resort," only when all alternatives have been exhausted.

The documents are declarations from two of Apples security personnel who described the measures they took in investigating the source of the leak of the Asteroid information. They described tracking who had access to the documents and who accessed files on a secure internal server.

"At a minimum," Opsahl said, "[Apple] should have asked for depositions or testimony under oath from employees under suspicion.

"While theyre willing to seek subpoenas for people without associations with Apple, they failed to review laptops or e-mails," Opsahl said. He added that no investigations were made as to whether confidential information was sent via a Web-based e-mail client or copied to a physical medium.

Apple has claimed that publication of the Asteroid information, and complicity in the leaking of the information, constituted a violation of the Uniform Trade Secrets Act as defined in California Civil Code 3426.1. The act states that if a company takes reasonable measures to protect information and this information has value in being kept secret, California courts should rule that such information should be afforded protection as a trade secret.

Under this statute, misappropriation, which is defined as the acquisition of information via improper means or the use or disclosure of trade secrets, is prosecutable. One of Apples arguments in its filing was that the information published on the Web sites was acquired through violation of NDA (nondisclosure agreement)—even if the Web sites did not solicit violation of the NDA—and was thus acquired through improper means.

In February, Apple agreed to hold its subpoenas against the Web sites and their Internet service providers while the EFF filed a protective order for its clients.

In March, the EFF followed this up by filing an appeal designed to stop Apple from discovering the sites confidential sources.

Opsahl said the next step in the case will be to schedule oral arguments, which should take place before the end of the year. Both sides filed written pleadings by July 25, he said.

When contacted for comment on the courts decision to unseal the documents, an Apple spokesperson simply restated the companys reasons for filing the complaint. "Apple has filed a civil complaint against unnamed individuals who we believe stole our trade secrets and posted detailed information about an unannounced Apple product on the Internet," the spokesperson said.

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